Nigel Whitfield’s digital TV & technology blog

WTF … should I pay to download BBC programmes?

The outgoing Director General of the BBC recently announced plans for something called Project Barcelona, essentially a download store for material from the BBC archives.

At the moment, you can watch most BBC programmes for seven days after broadcast, free of charge via iPlayer. In a few cases, a whole series may be available for a little longer. But after that initial catch-up window, it disappears. If you want a copy after that, you’ll have to wait until the DVD comes out, or buy a digital download from a store like Apple’s iTunes store.

Besides iTunes, there are a few other stores that have BBC content, but between them what’s on offer still adds up to a tiny fraction of all the material that the BBC has in its archives. There’s a wealth of material that people remember fondly, which has never found its way to video or DVD, let alone download stores.

Project Barcelona will, hopefully, make much more of this available. If you’ve ever been to Cadbury World in Bourneville you’ll see what this means – there are more types of chocolate available than you can shake a stick at. A huge range of things, many that you struggle to find in other stores, because perhaps they don’t sell in large enough quantities.

Of course, a digital store, supposedly, doesn’t care about that. You can have the ‘long tail’ items – those that don’t sell many, but add up over a long time, and it’s still worth supplying them. But even so, I suspect that, if the BBC offers a shop of their own, it’s likely to be much more comprehensive than those on offer elsewhere. And with their knowledge of the programmes, they can probably provide much more interesting ways to navigate the content than you find on, say, iTunes.

But why bother?

Over on the Which Conversation blog, they’ve asked the question “would you pay to download BBC programmes?” and a surprising number of people have selected “No” as their answer. Or perhaps it’s not so surprising – we all like to get something for nothing. In part this post is an expansion of the comment I added there, so apologies if I’m rehashing old ground.

We’ve all (or most of us, at any rate) paid for the BBC, right? So why the hell should we pay to download programmes. They’re ours, aren’t they? We own the BBC, we pay for it, so we own the things it makes. If you have a TV licence, then you should get a code that validates you to play any content you like, whenever you like.

On the face of it, that’s a pretty appealing argument to some people; it appears clear and simple to understand, and thanks to some of the bizarre actions of BBC management over the years, it’s no surprise that there are people who are so thoroughly exasperated with the Corporation they’d love to get back some of the money they’ve put in.

Rights and wrongs

There are, I’m sure, some who’ll be reading this who take the attitude that copyright shouldn’t exist, and it’s wrong for people to be paid over and over again for some of their work. That’s not an argument that I’m going to get into, beyond saying that copyright is a fact; wishing it weren’t won’t make it any less so. You may not approve of it, but that doesn’t actually mean you have an inalienable right to ignore it.

Of course, many people are technically breaching copyright already – when you record from broadcast TV in the UK, you’re allowed to do so for the purposed of time-shifting. What you are explicitly not meant to do is to put recordings in an archive for repeated viewing. So, while a modern Freeview PVR makes it easy to record a whole series, if you were to burn that to DVD, or store it on a media server, so you can watch it whenever you want, technically, you’re breaching copyright. (The details, from the Intellectual Property Office, are here).

It’s most unlikely that you’d actually be prosecuted for doing so, of course, because it’s virtually impossible to detect. But that’s the legal situation.

This sets an interesting challenge for anything that’s broadcast now – with ever larger hard drives, and little chance of being caught, why should someone bother to pay for content that’s been recently broadcast, when they could record it from Freeview or Freesat, and watch it whenever they like? Certainly, a high price will put many people off, for recently broadcast material at least.

Don’t we own it anyway?

What of this argument that we own material anyway, so we should be able to download it free? Especially since we can grab it free when it’s broadcast?

Well, the fact is that, though you may pay your licence fee, and that does indeed fund the BBC, you don’t own the material. We may, in theory, own the BBC collectively – but just as we could be said to have owned British Telecom collectively, that certainly didn’t stop the government selling it to some of us all over again. Nor does owning shares in BT mean you can just borrow one of their vans when you fancy.

The ownership of creative work is very seldom absolute – there are lots of people involved, including writers, directors, actors and more. All of them will have contracts, and in many cases, those contracts will long predate the internet, and the idea of downloading material. In some, they’ll even predate the idea of home video sales.

And often, when those contracts were drawn up, there was a concept of “residuals” or fees which are paid when something is broadcast, each time. Some people, I know, object to this as a matter of principle, and while it’s true that some stars may make a lot of money, just as not all authors make as much as JK Rowling, so many people in creative industries are poorly paid, and residual fees are a vital part of making up for poor up-front payments.

In some cases, too – and increasingly now – the BBC may not even own all the rights to the programmes that they’ve broadcast. As governments have sought to ‘open up’ the broadcasting market, independent producers have been used increasingly, with certain quotas specified. So, programmes that you may think are indelibly linked with the BBC, like Spooks, are not actually made by them. They are made on their behalf, by production companies – and those companies also own some of the rights. That’s one reason why things aren’t always available on iPlayer. And these reasons are why we don’t really own the content ourselves, no matter how many years we’ve paid the licence fee.

So, even when the BBC does provide downloads of material from the archives, it’s not free of cost. There may be a whole raft of different fees that have to be paid to people, and time spent negotiating those fees in the case of programmes made so long ago that none of this had ever been thought of.

Why not ignore it? Well, you can’t just do that, as print publishers found when they first started to put writers’ words on the internet, without offering any additional compensation. Just because a contract doesn’t mention the internet, you can’t pretend you have the necessary rights without paying.

You might want the BBC to ignore all this, but that’s not really going to happen. “Stand up to the studios” will be the cry of some anti-copyright campaigners. But it’s not just the studios, it’s ordinary working people, like actors and writers, who have contracts that entitle them to be paid. And if the BBC were to unilaterally say “You know, we’re not going to honour these contracts any more” it would seriously damage their reputation. Would you feel happy working for your boss if you were suddenly told that all the benefits you’d been promised had been withdrawn, without compensation? Whether you’re in the creative field or not, I doubt many people would like that.

Format shifting and infrastructure

There’s something else to remember too. While a lot of the programmes in the BBC archive have already been converted into formats suitable for online delivery, so that stores like iTunes can sell them, many more have not. Some will be in other digital formats, while others may still be on analogue media that has to be digitised.

That takes time – in the case of some older material, it will also require many hours of restoration, as has been done with some Dr Who recordings.

Then there’s the delivery infrastructure; if Project Barcelona takes off, it will require a huge infrastructure of servers, and bandwidth to deliver material, all of which has to be paid for somehow.

Put simply, digitising and converting content, and distributing it on the internet, is not without cost – even if the problem of residual fees and rights can somehow be avoided.

Who’s paying?

If you really want BBC content to be available for download free, “because I’ve paid the licence fee”, then I’d argue that what you’re actually arguing for is this:

that the BBC ignore any rights people may have in that content, and tell people they won’t be paid; that they fund the conversion of material to appropriate formats out of their current licence fee income; that they provide the download infrastructure out of their current income

And that, ultimately, means that there will be less money to spend on making new programmes. People complain enough about repeats as it is – besides, of course, complaints about star salaries. Do you really want to force more cost cutting, so that you can download programmes free, and in the process urge the BBC to ignore its contractual obligations?

I hope that, when it comes to thinking of it like that, most people will realise that, no matter how much we all like to get something free, it’s not really a practical proposition for the BBC to give free access to the archives – certainly not if we want them to continue to be able to attract creative people to work for them, and to have money for the new material that results.

yes – thanks for the great explanation – I’m pretty pro the BBC so I think I’d be happy to pay for this service – I think we’re (well all the sane people) all starting to realise that you have to pay for some things as otherwise the people that create these things are not going to be able to eat……and really it’s all about the creative content really not the delivery channels….

What a well-written article this is. Very persuasive and compelling arguments that if we still want the BBC to produce some of the best material in the world (both TV and Radio), then we must not starve it of resources. A reasonable fee for old archive material is well worth it.

Why don’t you try, because otherwise it looks just like you want something for nothing and have no real argument to make beyond “give it to me free” (and not, at that, even “because I pay the licence fee”).

What don’t you understand? Factual errors do you think there are – unless you have some other meaning of “wrong” like “I don’t agree with it” ?

It is a fact that much material in the BBC archives is subject to rights, which need to be resolved, and that there is a cost associated with it. It is also a fact that operating a download store such as that proposed by the BBC is not without infrastructure costs. It’s also a fact that much material – ever where digital – will not be in the same format as will be needed for download.

Given that there is no apportioning of blame, and little other than factual comment on recording technology, plus a link to the relevant legal information, it’s also hard to make sense of that part of your comment.

And, no, I didn’t account for what’s in people’s pockets – because it’s not relevant to the point I’m making, which is that licence fee payers do not own, or have some inalienable right, to free copies of content, just because it’s been shown on the BBC. Whether or not someone can afford a Morgan is similarly utterly irrelevant to the fact that a car that’s put together more or less by hand costs what it does.

Nor am I aware of any reputable survey (that means “not frothing editorial in the Daily Express”) that suggests the majority of the population think of the licence fee as a tax.

The public is already happy to pay money to own a copy of BBC content, and regularly does it. DVD & Blue-ray sales.

I personally don’t see any difference between downloading the latest season of Doctor Who from a BBC download store, and buying it on a plastic disk from an online BBC shop. If I’m fine with paying for one, I should be ok with paying for the other.

Good article. And a good site. Thanks to the Reg for pointing me in your direction. You are now bookmarked!

I think there maybe some errors in the above article, below explanation to the UK Copyright Laws

The 1956 Act is not retrospective in its effect, so a television or radio broadcast made before 1 July 1957 (the commencement date of the Act) has no broadcast copyright: Schedule 7 para 17, Copyright Act 1956.

In the case of a broadcast made after the commencement of the 1956 Act, the copyright in a broadcast programme expires 50 years from the end of the year in which it is broadcast: section 14(2), Copyright Act 1956. Repeating such a broadcast does not extend the period of copyright, whether the repeat is during or after the 50 year copyright period: section 14(3), Copyright Act 1956.

The 1956 Act restricts only two matters: it prohibits recording the broadcast for commercial purposes, and it prohibits causing the broadcast (if it is a television broadcast) to be seen in public by a paying audience: section 14(4), Copyright Act 1956.

These provisions were re-enacted in substantially the same terms in the Copyright Designs and Patents Act 1988, in order to preserve the distinction (established in the 1956 Act) between broadcasts made before and after 1 June 1957.

The 1988 Act applies only to broadcasts made after it came into force on 1 August 1989: section 170 and Schedule 1 paragraph 5(1), Copyright Designs and Patents Act 1988. But it effects merely a continuation, in the main, of the pre-existing law on broadcast copyright established in the 1956 Act, while adding protection for the new technology of cable television.

In the 1988 Act provision was made for the first time for material distributed by cable television, in the form of a separate copyright for cable programmes. This copyright lasts for the same period as broadcast copyright. However, there is no protection for cable programmes transmitted before 1 January 1985. Subsequent amendments to the 1988 Act have now merged the definition of a cable programme into the definition of a broadcast.

No mention is made to the storing of broadcasts in for example a collection for multiple viewing. Video recorders were available in 1988 when the act was made and it was common practice for people to precisely that.

Thanks for the post; Section 70 of the Act specifically lays down the time-shifting exemption, amongst other types of recording that are considered not to be a breach of copyright.

The notes from the IPO – and I would imagine they have given it some thought – expand on that to point out that doing things other than time-shifting are likely not permitted. If there is a good reason why the IPO advice is wrong on that point, I would appreciate hearing it.

And, of course, copyright is not the only point at issue in whether or not the BBC can simply give away material in its archives; there may be other contractual issues, like residuals, that are distinct from copyright, and mean that just saying “well, the BBC made it, they can give it away free” is something of an overly simplistic (and optimistic) interpretation of how things work, which was the main thrust of my original post.

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